Citation Nr: 9807636
Decision Date: 03/16/98 Archive Date: 04/02/98
DOCKET NO. 96-33 612 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUES
1. Entitlement to service connection for bilateral
sensorineural hearing loss.
2. Entitlement to service connection for the residuals of a
left hand crush injury.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
Elizabeth Gallagher, Associate Counsel
INTRODUCTION
The veteran had active service from September 1951 to July
1953, and from October 1953 to October 1957.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from a February 1996 rating decision of the
Department of Veterans Affairs (VA) Regional Office in St.
Louis, Missouri (RO).
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends, in essence, that his left hand was
injured in 1955 when a heavy weight fell on it, causing
permanent residuals including arthritis, and that he
developed bilateral sensorineural hearing loss when exposed
to acoustic trauma in service. He therefore asserts that he
is entitled to service connection for those disabilities.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that
the veteran has failed to carry his burden of submitting
evidence sufficient to justify a belief by a fair and
impartial individual that he has presented well-grounded
claims for service connection for bilateral sensorineural
hearing loss, and for the residuals of a left hand crush
injury.
FINDINGS OF FACT
1. The evidence of record is sufficient to render an
equitable decision concerning the veteran’s current appeal.
2. The service medical records show that the veteran was in
the vicinity of an exploding bomb in July 1954, and that he
had a minor hematoma of the little finger of one of his hands
in September 1957.
3. The service medical records contain no other reference to
a hand injury and no reference to a hearing loss by
complaint, symptom or diagnosis.
4. There is no medical evidence of record showing that the
veteran has current disabilities of bilateral sensorineural
hearing loss, or residuals from a left hand crush injury.
CONCLUSIONS OF LAW
1. The veteran has not presented a well-grounded claim of
service connection for bilateral sensorineural hearing loss.
38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R.
§ 3.303 (1997).
2. The veteran has not presented a well-grounded claim of
service connection for the residuals of a left hand crush
injury. 38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Service connection may be granted for a disability resulting
from disease or injury incurred in or aggravated by military
service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. The
United States Court of Veterans’ Appeals has determined
“that establishing service connection requires a finding of
the existence of a current disability and a determination of
a relationship between that disability and [service].”
(emphasis added) Cuevas v. Principi, 3. Vet.App. 542, 548
(1992); Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992).
Under 38 U.S.C.A. § 5107(a), a veteran has an initial burden
to produce evidence that a claim is well-grounded or
plausible. See Grottveit v. Brown, 5 Vet.App. 91, 92 (1993);
Tirpak v. Derwinski, 2 Vet.App. 609, 610-11 (1992). Where an
issue is factual in nature, e.g., whether an incident or
injury occurred in service, competent lay testimony,
including a veteran’s solitary testimony, may constitute
sufficient evidence to establish a well-grounded claim under
section 5107(a). See Cartwright v. Derwinski, 2 Vet.App. 24
(1992). However, where the determinative issue involves
medical causation or a medical diagnosis, competent medical
evidence to the effect that a claim is “plausible” or
“possible” is required. See Murphy v. Derwinski, 1
Vet.App. 78, 81 (1990). A claimant would not meet this
burden imposed by section 5107(a) merely by presenting lay
testimony, because lay persons are not competent to offer
medical opinions. See Espiritu v. Derwinski, 2 Vet.App. 492
(1992). Consequently, lay assertions of medical causation
cannot constitute evidence to render a claim well-grounded
under section 5107(a); if no cognizable evidence is submitted
to support a claim, the claim cannot be well-grounded. See
Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992).
The veteran’s service medical records show that, in July
1954, X-ray studies were taken to determine if he had been
injured by shrapnel fragments from an exploding bomb. In
September 1957, he presented with a hematoma of the little
finger of one hand, etiology unknown. All the veteran’s
service entrance and discharge examinations listed his
hearing as normal to whispered voice testing. The
examinations do not note any history of a crush injury
In January 1996, the veteran filed a claim for service
connection for bilateral sensorineural hearing loss, and the
residuals of a left hand crush injury.
The RO denied the veteran’s claim in February 1996 as not
well-grounded. He filed a notice of disagreement and
appealed to this Board.
Upon consideration of all the evidence of record, the Board
finds that the veteran has failed to submit medical evidence
showing that he has current disabilities of bilateral
sensorineural hearing loss or the residuals of a crush injury
to the left hand. Therefore, the veteran has not presented
well-grounded claims for service connection for those
disabilities, and his appeal must be denied. See Grottveit,
5 Vet.App. at 92; Tirpak, 2 Vet.App. at 610-611.
In order to present well-grounded claims for bilateral
sensorineural hearing loss, and for the residuals of a left
hand crush injury, the veteran must present some medical
evidence, such as a doctor’s written opinion, that he
currently has such disabilities, and that they are causally
related to his active service. The Board views its
discussion in this decision as sufficient to inform the
veteran of the elements necessary to submit well-grounded
claims for service connection the disabilities at issue. See
Robinette v. Derwinski, 8 Vet.App. 69, 77-78 (1995).
ORDER
As well-grounded claims of entitlement to service connection
for bilateral sensorineural hearing loss, and the residuals
of a left hand crush injury, have not been presented, the
appeal is denied.
ROBERT D. PHILIPP
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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